In any given year, many private companies are evaluating the potential transition from private to public ownership. An initial public offering (IPO) comes with a myriad of financial and operational concerns, ranging from public disclosure requirements to additional regulatory/compliance infrastructure, to confidentiality and trade secret concerns. One potentially under-appreciated area for consideration, for those companies considering an IPO, is directors’ and officers’ liability insurance (D&O). Recent claims trends and the March 2018 U.S. Supreme Court’s decision in Cyan emphasize the need to approach the D&O insurance topic with great diligence, and to obtain maximum protection for a company and its key executives. In our experience at Aon, key D&O topics for careful review include the following:
Beginning at the “all hands” initial kick-off meeting and through the road show, company executives are making decisions and representations that could create liability exposures. The private company D&O policy, which almost certainly excludes public securities claims, should not be so restrictive as to exclude pre-IPO preparatory and “road show” activity. Additionally, pre-IPO private company policies should contain carve-out language for “failure to launch” claims. The transition to a public company will also require clear policy language that determines how pre- and post-IPO allegations are addressed. Detailed negotiations of the “tail coverage” and “prior acts” coverage are critical to providing the appropriate protections for both the respective former private company and new public company boards and executives. IPO candidates should confirm that their current private company D&O program, with regard to terms, structure and limits, provides comprehensive pre-IPO coverage to provide a seamless transition to public company status.
Ensuring breadth of policy terms is perhaps the most critical component to a public company D&O insurance program placement. Maximizing coverage in the event of a claim is rooted in contract certainty and broadest and best-in-class terms and conditions. Unfortunately, inexperienced D&O practitioners can lead to debilitating coverage gaps and exclusions. It takes an IPO-experienced and detail-oriented brokerage tactician to obtain critical coverage enhancements. Coverage topics such as straddle claims, definition of loss and E&O exclusions can be the difference between maximizing policy proceeds and an outright claim denial. The D&O program coverage negotiations are multifaceted – the negotiations are not limited to the primary layer of insurance but, rather, involve numerous layers of negotiations with your excess insurers, including importantly your Side A insurers. IPO candidates should partner with detail-focused D&O professionals (which can include both brokers and outside counsel), to obtain maximum coverage.
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Public company D&O insurance can be markedly different in structure than private company D&O insurance. Two very common examples include the separation of limits (i.e., the D&O is no longer tied to other management liability coverages, such as employment practices and crime) and the addition of dedicated Side A difference in conditions (“DIC”) insurance. Additional structural considerations, such as entity investigative coverage, the inclusion of DIC limits within the “A/B/C” tower and the decision to run-off prior coverage or maintain continuity of a program are all structural items of critical importance to review prior to an IPO. IPO candidates should weigh the pros/cons of each approach and select a program structure that aligns with their unique risk factors and corporate purchasing philosophy.
Limits selection is not a “one-size-fits-all” question and can be influenced by various factors, including: expected offering size/market cap, industry risk factors, historical claims activity, merger/acquisition exposure, bankruptcy risk, a company’s risk retention capacity, limits availability relative to budget and board directives. Aon has several proprietary tools to assist clients in making informed decisions around the appropriate limits to purchase at the time of your offering.
Undoubtedly, many insureds experience sticker shock when contemplating the potential cost of a post-IPO D&O program. This is particularly true in the post-Cyan world as D&O insurers consider separate state court retentions and pricing commensurate with increased ’33 Act state court exposures. This environment has led to 2018 D&O pricing (for IPOs) that, in some cases, is more than twice comparable deals in 2018. IPO candidates should prepare senior management and the board to anticipate a meaningful change as compared with the private company program with regard to D&O premium. Candidates should also work closely with their broker to align strategies to maximize the return on this premium. These strategies can include meetings with key national decision-makers at leading D&O insurers, risk/retention analyses regarding potential retention levels and competition via access to national and international D&O insurers. Partnering with a broker that has a proven ability to “make a market” for competitive D&O pricing is crucial to maximizing the marketing opportunity and obtaining competitive pricing results.
While this topic is germane to both public and private companies, the IPO process can be a catalyst to review broad D&O topics, including the need for locally admitted policies. In many countries, non-admitted insurance is problematic and would not be permitted to respond in the event of a claim in such a country. Particularly for D&O insurance, which is intended to help protect individuals’ personal assets, the certainty of available coverage within problematic countries is critical. All companies, particularly IPO candidates, should consider their international exposures and implement locally admitted policies as needed.
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An IPO is an exciting but challenging time, for corporate issuers and their leaders. Partnership with subject matter leaders across several disciplines, such as accounting, finance, legal and insurance, can help a company execute a successful transition to public equity.
All descriptions, summaries or highlights of coverage are for general informational purposes only and do not amend, alter or modify the actual terms or conditions of any insurance policy. Coverage is governed only by the terms and conditions of the relevant policy. If you have questions about your specific coverage, or are interested in obtaining coverage, please contact your broker.